Thursday, June 15, 2006

House of Lords on State Immunity for Torture in Civil Proceedings

The House of Lords yesterday ruled that Saudi Arabia and Saudi Arabian officials were both immune from civil suit, even though the tort alleged was torture: Jones v. Ministry of the Interior Al-Mamlaka Al-Arabiya AS Saudiya (The Kingdom of Saudi Arabia) and Others [2006] UKHL 26.

As regards the immunity of the Kingdom of Saudi Arabia itself, the House ruled, in the two fully reasoned speeches given by Lord Bingham of Cornhill and Lord Hoffmann, and with the agreement of all the other three members of the Appellate Committee (Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, and Lord Carswell), that there was no sufficient state practice in favour of an exception from state immunity for grave charges such as torture. The survey of authority by the House is quite comprehensive, and clearly lends ample support to their Lordships’ conclusion.

The House also considered whether the fact that the prohibition of torture ranks as jus cogens prevents state immunity, a rule of ‘ordinary’ customary international law, from taking effect where acts of torture form the subject-matter of a case. This had been stated by a narrow minority of the European Court of Human Rights in Al-Adsani v. United Kingdom and previously held to be correct as a matter of international law by a number of American and English judges (Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 718 (9th Cir. 1992); Smith v. Socialist People's Libyan Arab Jamahiriya, 101 F.3d 239, 242 (2nd Cir. 1996); Al-Adsani v. Government of Kuwait and Others (England and Wales, Court of Appeal, 1996), ILR 107, pp. 536, 545, 547 (per Ward LJ); these authorities were, however, unanimous in holding that the relevant domestic statutes prevented them from giving effect to this state of international law).
Lord Hoffmann rejected this submission, stating that ‘the question is whether such a norm conflicts with a rule which accords state immunity’ (para. 43) and going on to find (at para. 44) that

‘[t]he jus cogens is the prohibition on torture. But the United Kingdom, in according state immunity to the Kingdom, is not proposing to torture anyone. Nor is the Kingdom [of Saudi Arabia], in claiming immunity, justifying the use of torture. It is objecting in limine to the jurisdiction of the English court to decide whether it used torture or not. As Hazel Fox has said (The Law of State Immunity (2002), 525): “State immunity is a procedural rule going to the jurisdiction of a national court. It does not go to substantive law; it does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different method of settlement. Arguably, then, there is no substantive content in the procedural plea of state immunity upon which a jus cogens mandate can bite.”’

His Lordship held, therefore, that there simply was no conflict between the prohibition of torture and the rules of state immunity, so that the difference in rank (jus cogens vs. ordinary customary international law) was nothing to the point. This is supported by a much wider body of opinion (see Christian Tomuschat, ‘L’immunité des états en cas de violations graves de droits de l’homme’, Revue Générale de Droit International Public 109 (2005), pp. 51 et seq.; Andreas Zimmermann, ‘Sovereign Immunity and Violations of International Jus cogens - Some Critical Remarks’, Michigan Journal of International Law 16 (1995), pp. 433, 435), and is, also in my opinion, quite correct.
To once again quote from Lord Hoffmann’s judgment (at para. 45): ‘To produce a conflict with state immunity, it is therefore necessary to show that the prohibition on torture has generated an ancillary procedural rule which, by way of exception to state immunity, entitles or perhaps requires states to assume civil jurisdiction over other states in cases in which torture is alleged. Such a rule may be desirable and, since international law changes, may have developed. But, contrary to the assertion of the minority in Al-Adsani, it is not entailed by the prohibition of torture.’ As Lord Hoffmann demonstrated in the following part of his judgment, state practice does not testify to any such new exception.
I would therefore agree that jus cogens was quite immaterial to the question of state immunity before the House, and that a state therefore remains immune from legal process in a foreign state even for its violations of jus cogens.

I have much more difficulty, however, with the second holding of the House of Lords, namely that the state officials alleged to have committed the act of torture also enjoyed immunity.
The ground of immunity in this case is obviously immunity ratione materiae, i.e. the immunity of a past or present state official in relation (only) to his or her official acts.
The reasoning of the House was as follows (omitting the considerations of jus cogens, which are obviously as (ir)relevant to this type of immunity as to the immunity of the state itself):
- It is not true that severe crimes by a state official cannot be regarded as acts of the state itself, and thus as giving rise to immunity ratione materiae. This proposition is unsupported by authority, and deviates from the definition of acts of state as accepted in the law of state responsibility.
- There is not sufficient state practice in relation to immunity ratione materiae in civil proceedings to find that customary law allows for an exception from such immunity where severe international crimes are alleged.
- There is accordingly immunity ratione materiae even in relation to acts of torture. This has not been waived by treaty. In particular, while the UN Convention against Torture of 1984 implies, in its provisions on criminal prosecutions, a waiver of immunity ratione materiae (R v. Bow Street Metropolitan Stipendiary Magistrate, Ex p. Pinochet Ugarte (No. 3)[2000] 1 AC 147), no such waiver is implied in any provision on civil liability.

The second proposition appears to be well-established from the review of such authorities as there are in their Lordships’ judgments. This may be because there have been relatively few attempts to bring civil cases in reaction to the most severe crimes known to international law, but however that may be, there certainly is not sufficient evidence available to find that the rule of state immunity has, in part, been displaced.

The first proposition is much more problematic, in that it appears to fly into the face of the judgment of the House in R v. Bow Street Metropolitan Stipendiary Magistrate, Ex p. Pinochet Ugarte (No. 1)[2000] 1 AC 61. However, the House of Lords explained yesterday that it had never held that severe crimes could not be acts of state in the sense of the rule of immunity ratione materiae (Lord Hoffmann, at paras. 86-88), and Lord Bingham doubted (at para. 19) whether Pinochet (No. 1) still possessed any value as precedent, having been set aside for procedural reasons (In re Pinochet [2000] 1 AC 119) and superseded by Pinochet (No. 3). I do not intend to go into this, except to note that the understanding of Pinochet (No. 1) at the time was always that it denied immunity ratione materiae for severe crimes (see only Jill M. Sears, ‘Confronting the “Culture of Impunity”: Immunity of Heads of State from Nuremberg to ex parte Pinochet’, German Yearbook of International Law 42 (1999), pp. 125 et seq.); yesterday’s holding was therefore most surprising, even if it may have been correct, and was obviously within the powers of the House.
However, there is very much more authority for the view that severe crimes do not fall within the scope of application of immunity ratione materiae, for the reason that they are in no conceivable sense ‘acts of state’ as opposed to culpable acts of the individuals. Without giving exhaustive references now, the line of authority begins with the Tribunals at Nuremberg and Tokyo (Annual Digest 13 (1946), pp. 203, 221, and Annual Digest 15 (1948), pp. 356, 362, respectively), and probably ends with the pronouncements of the ICTY in the Milosevic (paras. 27-34) and Kunarac (para. 494) cases. Some pronouncements to this effect are, furthermore, so brief that they must have been intended as a statement of a well-established rule, not as a new or even bold statement (see e.g. The Prosecutor v. Tihomir Blaskic, Judgement on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997 (Objection to the Issue of Subpoena Duces Tecum), at para. 41).
True it is that all these authorities related to criminal proceedings, but the holding was in all cases that the private perpetrators of the relevant crimes could not hide behind the attribution of their acts to the state, and that these acts were accordingly, for the purposes of the question of immunity, not acts of state. This does not mean that the acts in question are no longer attributable to the state, and that the state is absolved of responsibility for them. There are, under this reasoning, two quite distinct concepts of an act of state. The one determines the immunity of the individual, the other the responsibility of the state. There is a difficulty here, but this is only in the terminology.
The authorities cited therefore show that there is a category of cases for which the state will incur international responsibility, but not enjoy the benefit of ratione materiae for its servants. This is ultimately a consequence of the law valuing the accountability of individual wrongdoers over the interests of their states in retaining immunity in relation to all their acts.

The definition of this category of cases attaches to the nature of the acts in question, not to the kind of proceedings in which they will become relevant. The principle of the reduction of immunity ratione materiae therefore applies with equal force to civil as to criminal proceedings.
However, some of the Law Lords in Pinochet (No. 3) added obiter that no exception from immunity ratione materiae could ever apply in civil proceedings for damages, reasoning that in such a case, the state would be bound to indemnify its servants for any damages paid by them out of their own pockets. The Court of Appeal in the case decided yesterday by the House of Lords was unconvinced, holding that such a duty of indemnification could not be reconciled with the duty to prosecute acts of torture (at para. 126, per Lord Phillips of Worth Matravers MR; it is a bit strange that the House yesterday overruled a case in which Lord Phillips had retracted his earlier statements – he had been one of the Law Lords in Pinochet (No. 3) I just referred to, but the House yesterday preferred to hold that his earlier statement was in fact correct).
The House added yesterday that the state would be indirectly impleaded by a case brought against one of its servants for his or her official actions, because its responsibility, like that of the official, would be in the nature of a civil liability, so that the English court would, in stating the civil liability of the official, imply also the responsibility of the state for which he or she was acting (Lord Bingham, at para. 31). I am not convinced. The only negative consequence ensuing from a judgment against a state official would be a deleterious effect on the dignity of the state, in that, to any reader of the judgment, the state would appear to be as guilty and liable as the state official. But this effect would be, if anything, greater if it followed from the criminal conviction of a state servant. Besides, the law of state immunity does not protect the dignity of a foreign state: if it were otherwise, it would have to prohibit also all incidental judicial comment on the lawfulness or otherwise of conduct of another state. This is not the case, as appears from cases like Kuwait Airways Corporation v. Iraqi Airways Co (Nos 4 and 5)[2002] UKHL 19, [2002] 2 AC 883 (where the House of Lords refused to recognise effects of the unlawful Iraqi invasion of Kuwait).

I would therefore prefer to think that a state official can be sued for damages for acts of torture committed by him or her in an official capacity.

This result, as a matter of customary international law, would have the added advantage of removing one problem that has already reduced the meaning of Pinochet (No. 3). The reliance there on a waiver by treaty of an otherwise existing immunity, like the recognition yesterday of persisting immunity and the abstract possibility of such a waiver, suffers from the weakness that any waiver will always be limited to its terms, and to the field of application of the relevant treaty.
So far from making any general statement excluding (as I have attempted to show, in line with considerable authority) any immunity ratione materiae in respect of the most severe crimes, the House even stressed that none of its own previous cases had included any such holding.

This must be regretted.

It will be interesting to see whether the question will be taken on to the European Court of Human Rights, and whether it will engage in any thorough review of the questions of general international law. It clearly can do so, the grant of state immunity to a defendant constituting an interference with the right of access to a court inherent in Article 6 (1) ECHR (Al-Adsani v. United Kingdom, at para. 46-49; the House of Lords yesterday doubted the truth of this, preferring the view of Lord Millett in Holland v. Lampen-Wolfe [2000] 1 WLR 1573 that Article 6 was not engaged in such a case. However, this question of applicability clearly also comes under ‘European supervision’ by the Court, so there is no real difference.). This is, under the Al-Adsani approach, justified if international law really does impose such a rule of state immunity, so the European Court is empowered and required to examine the question of state immunity.
There is, in my opinion, good reason to come to a conclusion different from that the House of Lords reached in yesterday’s judgment, as far as the immunity of the state officials is concerned, while the holding as to the immunity of the state itself probably cannot be doubted.